Diary news plus insights, commentary and appointments from the legal world

18 April 2025

Editorial contact: fennell.edward@yahoo.com

SHORT THOUGHT FOR THE WEEK: Who Chooses the Loos?

The paradox of this week’s decision by the Supreme Court on what constitutes a ‘woman’ is that despite being acclaimed for being ‘common-sense’ and ‘definitive’ it still leaves open a lot of practical questions and areas of ambiguity for schools, hospitals and businesses.

Beyond that, however, is that it does not appear to have addressed that other fundamental question – what does it mean to be a ‘man’? A simplistic argument might be that if you do not qualify as a ‘woman’ then by definition you must be a ‘man’. But even in biological terms that would be open to challenge. Moreover it has been pointed out that as things now stand trans men – whose treatment means that they have muscle and facial hair and appear in many respects masculine – will be entitled (or even obliged) to use female facilities.

So, lots of tricky questions ahead. One might hope that at this Easter season they might be considered with compassion rather than contention.

The LegalDiarist

In this edition

+ LEGAL DIARY OF THE WEEK

Jenner’s justice

The Retiring Patrick Allen, Blunt Message

Blunt Message

A Greater Voice for Children During Family Separation?

+ CONTRIBUTED ARTICLE OF THE WEEK

REGULATION AND THE PARALEGAL SECTOR by Amanda Hamilton

+ LEGAL COMMENT OF THE WEEK

on the Supreme Court’s decision on the meaning of ‘Woman’, the Gutmann v Apple Inc & Ors case, new research into the legal gaps for tackling child sexual abuse material (CSAM)

+ APPOINTMENTS OF THE WEEK

Reeds Solicitors LLP

LEGAL DIARY OF THE WEEK

Jenner’s Justice

Last week we featured Jenner & Block one of the US law firms coming under fire from the US government based on its record of involvement in cases uncomfortable for the current Administration. Unlike many of its peers Jenner is not backing down. Here are a couple of choice quotes issued last night regarding its current position:

“Lawyers cannot be the dedicated advocates for their clients that our profession requires if they are threatened with government punishment for their speech and associations. Clients cannot receive the effective representation the Constitution guarantees if their lawyers fear retaliation for defending disfavored positions in court or associating with disfavored individuals. The Judiciary cannot provide the independent judgment the Constitution demands if it cannot find ‘an informed, independent bar’ comprising ‘lawyers who advocate zealously for all clients.’

And:

“It is no coincidence that each of the recent orders targeting law firms has likewise invoked ‘risks’ to the national interest while focusing on each firm’s disfavored speech and associations, and it is no coincidence that these purported ‘risks’ vanish as soon as firms agree to advocate for the President’s preferred causes. Indeed, all this has been admitted by the President himself: Speaking of the settling firms, he recently explained, ‘I agree, they’ve done nothing wrong, but what the hell, they give me a lot of money.’” (MTD Opp. Brief p. 2)

Stirling stuff.

The Retiring Patrick Allen

One of the giants of the campaign for legal justice in this country has announced is departure from the scene of battle. Having co-founded Hodge Jones and Allen in 1977 , Patrick Allen (obviously the name partner) has decided that it is time to call it a day.

“I take great pride in the development of Hodge Jones & Allen, which after 48 years still holds to our founding ethos of fighting for justice,” said Allen in his departing remarks. “The firm employs over 250 people and still goes from strength to strength. As anyone who runs a law firm will know the economic headwinds, legislative change and financial pressures never abate, so to have stayed the course delivering the same work over almost five decades speaks volumes about our commitment to helping people in often unfashionable areas of the law.

“Over the years we have also helped over 300 lawyers to qualify. It has been my great privilege to act for so many amazing clients and work with dedicated and brilliant colleagues. I leave the firm with rock solid foundations and look forward to watching how it continues to evolve under new leadership.”

It was almost by chance that Allen got into the law having seen a pal unjustly arrested at a demo back in 1971. It was the desire to rectify wrongs which drove him on and in later years the firm specialised in complex personal injury and multi-party cases. Allen went on to lead the firm’s team which that managed the Gulf War illness claims for UK veterans and the New Cross fire inquest. He also managed the MMR and Sheep Dip multiparty actions and played a lead role in the Marchioness litigation. And from 203-2005 he acted for women who had been abused in Ireland as part of the ‘Magdalene laundries’ scandal.

In retirement he will continue his work with the Progressive Economy Forum, a think tank he founded in 2018. So we have probably not heard the last of him yet!

Blunt Message

Hywel Pegler, partner and National Head of Professional and Business Services at audit, tax and consulting firm RSM UK, gave a blunt review this week of the state of law firms right now given the Government’s drive to impose higher taxes on hiring people.

“ For law firms, these tax rises will be significant, as people are firms’ primary asset and represent such a large proportion of the cost base,” said Pegler. “This is also coming at a time when firms are more actively considering the appropriateness of their structures for a whole host of reasons including succession, technology and funding options .Given the current economic environment, some firms perhaps haven’t been generating the growth they were expecting, so these cost pressures may present further challenges for decision makers trying to untangle and resolve.”

From there it was short step to the killer punch. Not a surprise any more but severe nonetheless.

“To mitigate the impact of rising tax costs, law firms need to recognise the role of technology as a driver of growth and efficiency,” warned Pegler. “While other professional services firms are already leveraging technology and AI to innovate and future-proof their business models, law firms risk falling behind unless they adopt new solutions to tackle the challenge of top-line growth. As firms consolidate their resources, technology will be essential to staying competitive, improving client service and maintaining profitability.”

Well you can’t say fairer than that.

A Greater Voice for Children During Family Separation?

According to an analysis out this week by Anne Barlow, (University of Exeter), and Jan Ewing (University of Cambridge), there is a “crucial need” to review the law to ensure children’s voices are better heard during family separation,. They even go so far as to suggest that now may be the right time to consult on whether The United Nations Convention on the Rights of the Child (UNCRC) should be formally adopted into the law of England and Wales, to ensure that the position of children following parental separation is safeguarded and their voice in is properly heard.

The issue arises out of the current set-up whereby there is an emphasis on children’s welfare but no such protection of their legal rights. “This is a critical moment for the Law Commission to examine whether the 1989 Act adequately protects the rights and meaningfully facilitates the voice of the child to ensure arrangements made are in their best interests,” said Professor Barlow.“Such a review would be particularly timely given recent family law developments, which have resulted in strong encouragement of non-court dispute resolution, legal aid changes, the loss of any requirement for the court to consider the proposed arrangements for children on divorce; developments internationally to promote children’s rights through the UNCRC and the move in other UK nations to adopt the UNCRC principles in domestic legislation, potentially leaving children in England with fewer rights than their counterparts in Wales and Scotland.”

On those grounds alone it is probably time to act.

CONTRIBUTED ARTICLE OF THE WEEK

REGULATION AND THE PARALEGAL SECTOR by Amanda Hamilton

While solicitors are statutorily regulated by the Solicitors’ Regulation Authority (SRA), there is no single organisation to both regulate how paralegals are qualified and to monitor their conduct. Although an individual cannot expressly describe themselves as a ‘solicitor’ (or even imply they are) unless they have successfully completed the prescribed training as directed by the Solicitors’ Regulatory Authority and are named on the solicitors’ role (located on the SRA website), anyone can describe themselves as a ‘paralegal’.

However, there is one long standing membership body within the paralegal sector—the National Association of Licensed Paralegals (NALP; established in 1987)—that offers voluntary regulation to its members. If a paralegal professional is associated with NALP, they are regarded as being accredited and validated by the only paralegal specific membership body in England and Wales. This means that their credentials have been thoroughly checked. The National Paralegal Register lists all NALP members and their membership categories.

Regulation for paralegals

NALP is the only paralegal specific body; it does not offer membership or accreditations for any other profession. Until very recently there was another paralegal membership body, launched in 2002, but that organisation has now closed.

The Chartered Institute of Legal Executives (CILEx) has a paralegal membership category but CILEx is the statutory regulatory body for legal executives only and has no statutory remit to regulate any other profession. However, a paralegal can join as a member of CILEx and will be bound to comply with their code of practice and membership rules and regulations.

If a paralegal works for a regulated solicitors’ firm, then they can be considered to be under the umbrella of the SRA and should abide by the rules of SRA regulation.

Apart from this, there are no other paralegal organisations in England and Wales and no legal requirement for a paralegal to join a specific body, so the profession remains largely a voluntary, self-regulatory one.

The future

There have been a few discussions in the last ten years or so about whether or not the paralegal profession should be statutorily regulated, but this has not been popular and has been rejected by the sector on the basis that there is already too much regulation. The main objection has been that regulation will cause the fee structure of paralegals to increase for consumers, meaning that while the sector remains voluntarily regulated, consumers can still attain access to justice at a reasonable cost.

Amanda Hamilton is the Patron of the National Association of Licensed Paralegals (NALP), a non-profit membership body and the only paralegal body that is recognised as an awarding organisation by Ofqual (the regulator of qualifications in England).

Web: http://www.nationalparalegals.co.uk

LEGAL COMMENT OF THE WEEK

TOPIC: The Supreme Court’s ruling on the definition of ‘woman’ and the impact this will have in employment law vis-à-vis the Equality Act

COMMENT BY: Jonathan Mansfield, Employment Law partner, Spencer West LLP

“This latest ruling highlights inconsistencies in sex based rights in employment and poses some practical issues for employers. Certain rights which are currently available related to sex such as equal pay will only be available based on biological sex. A trans woman, for example, will not have the right to bring an equal pay claim on the basis that she is paid less than a (biological) man. There is specific protection against discrimination for those who have undergone or propose to undergo gender re-assignment. However, this protection does not extend to all those who would be entitled to apply for a Gender Recognition Certificate where the requirements include a diagnosis or gender dysphoria and having lived in the acquired gender for at least two years among other requirements. The Supreme Court decision is consistent with the recommendations of the Equality and Human Rights Commission recommendation in 2023 that a biological definition of “sex” in the Equality Act 2010 should be adopted as it creates clarity in more areas of legal protection (e.g. data collection) than confusion or disadvantage (e.g. equal pay). There is clearly a need for legislative clarification in this area given as the EHRC noted that society has evolved considerably with regard to matters of protected characteristics of sex and gender re-assignment since the Equality Act 2010 was enacted.”

COMMENT BY: Hina Belitz, Employment law Partner, Excello Law

“The instant reaction for this will be incredibly varied – for campaigners who are critical of the inclusion of trans women into the meaning of women, this will be celebrated, whilst for trans rights activists this will be seen as a restriction on the legal rights of trans women.

“This decision is arguably well-founded as, as we have seen in sports such as fencing wherein biological women have been excluded from the finals in favour of trans women, there are times when there is a sound basis for recognising the biological realities of a person’s sex.

“Employment law has long recognised sex differentials – this is, in fact, embedded into the very fabric of the law when considering e,g, discrimination on the basis of sex. It is the bedrock of equality law to recognise a tendency towards unequal treatment based on sex, particularly for women.

“However, this will inevitably lead to some thorny issues: for instance, a biological woman who transitions to male and receives a gender recognition certificate for doing so – if this person were to become pregnant, how will the law treat parental leave as maternity and paternity leave are differentiated in the law/

“Furthermore, it’s more likely that much of the rights in the Equality Act 2010 such as sexual harassment will be unaffected as both sexes can be affected.”

COMMENT BY: Polly O’Malley, Partner in the employment team, Browne Jacobson

“While many senior leaders may feel under pressure to act quickly following this ruling – whether from board members, members of the public or other key stakeholders – it’s important to pause and understand their position.

“Whenever a Supreme Court judgment signals a new interpretation of the law, it doesn’t necessarily follow that policies and processes used by organisations are automatically now incorrectly applied – indeed, many will remain just as important and any knee-jerk reaction could cause more harm than good.

“Given the Supreme Court has upheld the protection of transgender individuals from discrimination on the basis of gender reassignment, employers should tread carefully and ensure they continue to promote a culture of openness and respect between employees, underpinned by internal training that helps to eliminate hidden bias.

“For any business or publicly-facing organisation guidance should be reviewed and potentially updated to reaffirm the importance of when and how it is appropriate for personal opinions to be expressed within the workplace or environment in which activities take place.”

COMMENT BY: Chelsea Feeney, Employment Associate, Stevens & Bolton

  “This is a landmark decision in the legal definition of a “woman” and will forever shape the legal landscape of gender recognition and sex-based rights in the UK. Today’s judgment has reinforced the legal distinction between “sex” and “gender reassignment”, striking down previous guidance that considered holders of Gender Recognition Certificates as women in the eyes of the law.

“The Supreme Court has sided with For Women Scotland’s arguments that the statutory guidance issued by the Scottish Ministers unlawfully conflates the protected characteristics of “sex” and “gender reassignment”, upholding their concerns that this could bring about the potential erosion of sex-based protections.

“Whilst this judgment pertains to the application of “woman” in the Gender Representation on Public Boards (Scotland) Act 2018, I strongly suspect it will be referred to in many more disputes and policies to come, especially as debates around diversity and equality policies continue to rage.

“For employers, this could mean that a review of Human Resources policies and diversity training is necessary, to ensure they accord with the updated definition of a “woman” in relation to biological gender without reference to those who have obtained a Gender Recognition Certificate. Employers who operate single sex services or spaces may also need to reassess their policies to ensure these reflect the new position, which could lead to the exclusion of transgender individuals who hold Gender Recognition Certificates from spaces which do not align with their biological gender, unless exceptions apply. However, employers should note that the Equality Act 2010 still affords transgender people protection from discrimination through the protected characteristic of their gender reassignment. Transgender people are also still able to claim sex discrimination because they are perceived to be their acquired gender.”

TOPIC: The Court of Appeal’s ruling in the case of Gutmann v Apple Inc & Ors, which confirmed that litigation funders can take their fee before any damages are distributed to class members

COMMENT BY:  Matthew Lo, Director, Exton Advisors,

“This judgment helps to deal with one of the key areas of uncertainty in the regime and will come as welcome news for funders with an interest in this space.

“In a post-PACCAR world, a finding that funders can only ever be paid out after distribution to class members would have been a further blow to the funding market in this jurisdiction, which is already navigating a turbulent period.

“The possibility of being paid out in priority to class members can be fundamental to funders in certain cases, particularly where a high take-up of damages by the class is likely, for example where a payment by way of account credit is proposed.  It would be a perverse outcome if funders were disincentivised from investing in cases with a possibility of high take-up, which should be the very cases the regime encourages to be brought.  Many in the market will be relieved to see this outcome being avoided.”  

COMMENT BY: Mohsin Patel, Director and Co-Founder, Factor Risk Management

“For almost three years, this case has been stuck in a procedural rut due to tactical machinations by the well-heeled lawyers of the largest corporation on the planet . Whilst many will welcome the Court of Appeal unanimous confirmation of the CAT’s prior ruling – particularly after a number of recent disappointing outcomes in the CAT – justice delayed is justice denied.

“The enthusiasm with which well-resourced Defendants continue to deploy to delay and obfuscate meritorious claims has a significant impact on consumer confidence in the collective action regime in this jurisdiction. The courts should give short shrift to these kinds of arguments, and begin to penalise defendants for their conduct.

“Furthermore, legislators should move more comprehensively to clarify the several areas ripe for contention – not least in overturning the widely critiqued PACCAR ruling.

“At a time of economic turmoil and stagnating productivity, the UK legal services sector remains one of the few stand out areas of growth to our economy. It cannot be assumed that this position will remain without innovation and increasing efficiency. Several international litigation funders have already retreated from the UK post PACCAR and an even greater number have reduced their appetite for CAT claims, not least due to the duration risk attaching to such claims. There is an alignment of interest for consumers and funders alike in improving the current position.”

TOPIC: New research into the legal gaps for tackling child sexual abuse material (CSAM) created by generative artificial intelligence (gen-AI) across the Five Eyes nations

COMMENT BY: Dr Konstantinos Gaitis, Childlight Research Fellow

“While we found generally laws across the Five Eyes countries are broad enough already to cover the advent of AI or are adapting to it through legislative updates and case law, there are still some gaps and work to be done. These gaps should be addressed to fully provide the protections and accountability needed to keep children safe. AI is rapidly developing, with increased levels of autonomy, so it is essential laws keep pace.” 

APPOINTMENTS OF THE WEEK

Harvey Fox has   joined the Private Crime Team at Reeds Solicitors LLP as its new Pre-Charge Engagement Specialist and Litigator based in its Bristol office. Previously with Freemans Solicitors LLP where he co-ordinated the 24-hour police station advice service for nearly two decades, Fox has vast experience advising clients on some of the most grave and complex criminal cases including high-profile murder investigations, sexual offences, drug trafficking and fraud. He has represented clients under investigations by a wide range of agencies from the police, The Benefits Agency, local authorities through to the NHS Service bodies. He is recommended by the drugs’ advice charity “Release” to people arrested for the possession or supply of drugs.

“Having Harvey Fox join our busy criminal defence team here at Reeds is a real coup for the firm,” says Nicola Hutchinson, partner and Crime area manager for the Southwest. “His professionalism and tenacity for doing the very best for his clients is well-recognised on the circuit across the country.  Though he will be based primarily from the Bristol office, due to the nature of his work, he will be representing clients nationwide.  He is well known for his care and compassion with a particular interest and extensive experience working with those with mental health issues and learning disabilities.”

We hope that you’ve been interested or amused by something in this week’s LEGAL DIARY. If so do send on to colleagues.

And please continue sending your ‘Diary-type’ stories, insights legal comment and appointments to

fennell.edward@yahoo.com

Meanwhile have a lovely EASTER HOLIDAY Weekend.